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In Federal Asbestos Personal Injury Case, Plaintiff’s Expert Dr. Vance Is Excluded, and Defendant GE Prevails on Summary Judgment
Arbogast v. A.W. Chesterton Co.
In Arbogast v. A.W. Chesterton Co., et al., Civ. No. JKB-14-4049 (May 18, 2016), an asbestos personal injury case involving a Plaintiff with a mesothelioma diagnosis, the Court granted Defendant General Electric Company’s (“GE”) Motion to Exclude Certain Opinions and Testimony of R. Leonard Vance, Ph.D., J.D., PE, CIH (“Dr. Vance”),who was offered by Plaintiffs as an expert on the subject of asbestos exposure. First, GE moved to exclude Dr. Vance as inadmissible under Fed. R. Evid. 702, and second, GE argued that Dr. Vance’s opinion regarding asbestos exposure from GE’s marine turbines, was not included in his Rule 26 disclosures and should be excluded pursuant to Fed. R. Civ. P. 37. The Court agreed and granted the Motion to Exclude, as well as GE’s Motion for Summary Judgment.
With respect to GE’s argument on the timeliness of Plaintiffs’ expert disclosures, Plaintiffs filed an expert disclosure pursuant to Fed. R. Civ. P. 26(a) consisting of a written opinion by Dr. Vance. In relation to GE, Dr. Vance noted that Arbogast said he worked with GE generators at the Sparrows Point Shipyard and that he worked with GE asbestos braided wiring. Because Plaintiff advised that the wiring produced visible dust when he worked with it, Dr. Vance held the opinion that Plaintiff was exposed to asbestos dust emanating from GE braided wiring. Dr. Vance’s opinion never mentioned GE marine turbines. At Dr. Vance’s deposition, he made clear on cross-examination that he was only opining about GE wiring. After cross-examination concluded, Plaintiffs’ counsel had an exchange with Dr. Vance over Defendant’s objection, concerning GE turbo generators. Dr. Vance stated that GE turbo generators were insulated with asbestos, that Plaintiff would have been presented a risk of exposure to respirable asbestos by working in the engine room near GE turbo generators, and that the exposure was of a type discussed in the industrial hygiene literature as requiring either respiratory protection or a warning sufficient for the employee to avoid exposure.
At issue was the adequacy of Plaintiffs’ disclosure of Dr. Vance’s opinions. Expert opinion testimony that is not properly disclosed pursuant to Rule 26 is subject to exclusion as a sanction under Rule 37(c)(1). Plaintiffs had the burden to show that their failure to comply with Rule 26 was either substantially justified or harmless. Plaintiffs offered no explanation for their failure to disclose, in accordance with the Scheduling Order, Dr. Vance’s opinion that Plaintiff’s exposure to asbestos was caused by GE marine turbines. The Court further took issue with Plaintiffs attempts to blame GE for their failure to disclose based on GE’s cross-examination of Dr. Vance. To the Court, GE’s cross-examination of Dr. Vance was appropriately based on the contents of his Rule 26 written disclosure, which never mentioned GE marine turbines. “To suggest that defense counsel should have dreamed up an additional opinion for Dr. Vance’s cross-examination is ludicrous.” Plaintiffs argued that GE was not prejudiced by any belated verbal disclosure as to Dr. Vance’s opinions because it was prior to the close of discovery, prior to defendant’s designation deadline, and prior to defense depositions. The Court found that the informal, belated disclosure was prejudicial in this complex case involving many parties. Thus, the Court excluded Dr. Vance’s testimony on GE marine turbines.
As an additional reason to exclude Dr. Vance, GE argued that his opinions as to GE products were speculative, lacked a sufficient factual basis, were not the product of reliable principles and methods reliably applied, and were not helpful to the trier of fact. Hence, GE argued that Dr. Vance’s opinions were inadmissible under Fed. R. Evid. 702. As to the facts or data underlying Dr. Vance’s opinions that GE wire exposed Plaintiff to asbestos, the Court concluded that they were insufficient to comply with Rule 702. The Court determined that there was no evidence of record that the GE wire used by or near Arbogast contained asbestos. Dr. Vance cited Plaintiff’s testimony “that he worked with GE asbestos braided wiring” as the basis for concluding the GE wire contained asbestos. In the Court’s view, all that Plaintiff testified to was that: (1) the wiring used throughout the ship was GE brand and (2) Plaintiff believed it contained asbestos. “Believing something contains asbestos—with no basis in the record for that belief—is not the same as knowledge that something contains asbestos.” Since Plaintiff cannot be said to have known the GE wiring contained asbestos, Dr. Vance certainly could not rely on Plaintiff’s unsubstantiated belief that it did. As a result, Dr. Vance’s opinion that Plaintiff was exposed to asbestos by GE wire was not “based on sufficient facts or data,” in contravention of what Rule 702 required. In addition, Dr. Vance admitted in his deposition that he had no knowledge regarding the asbestos content of GE wire or what type of asbestos, if any, was in GE wire; that he had not seen any GE documents that discuss asbestos and wire; that he had not seen any documents from any source showing asbestos was in some kinds of GE wire during the time relevant to this case; that he had not seen any GE specifications or documents that stated asbestos was present in certain kinds of GE wire; and that, other than Arbogast’s statement about GE wire, he had not seen any evidence that GE supplied any asbestos-containing wire to any of Arbogast’s places of employment. Dr. Vance also conceded that he had not seen any published literature of expected exposure levels from working with asbestos-containing wire or any published literature connecting asbestos-related disease with asbestos-containing wire. Dr. Vance’s opinion regarding GE wire did not rest on sufficient facts or data to qualify for admission under Rule 702. While the Court had already excluded Dr. Vance’s opinion on GE marine turbines for noncompliance with Rule 26, the Court also found that Dr. Vance’s belated, informal opinion on this product was similarly inadmissible under Rule 702 for the same reason as his opinion on GE wire. The opinion about the turbines was unsupported by evidence that GE actually included asbestos in its marine turbines, and neither Arbogast’s nor Dr. Vance’s say-so was a sufficient basis for the opinion.
The Court next turned to GE’s Motion for Summary Judgment. Under applicable Maryland law, Plaintiff has the burden of proving that an actor’s negligent conduct was a substantial factor in causing the harm. In an asbestos case, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product. This standard necessarily assumes application to a product shown to have contained asbestos. The threshold showing that a product actually contains asbestos cannot be assumed, however. Proving that a product contains asbestos is an element of Plaintiffs’ case for which they bear the burden of proof. “Plaintiffs must offer evidence from which a jury may reasonably infer the asbestos content of a product.” GE “rightly” noted that in briefing, Plaintiffs often merely listed GE products existing at Mr. Arbogast’s various jobsites without providing any evidence to establish either they contained asbestos or that Arbogast was exposed to asbestos emanating from them. The record did not support a reasonable inference that the GE products Arbogast encountered aboard the ship actually contained asbestos. Certainly, Arbogast said the wire he described was referred to as “asbestos wiring” by him and by others with whom he worked, but “that casual reference is not proof of asbestos content.” Moreover, Plaintiffs have not pointed to any evidence that what Arbogast called “asbestos wiring” on board the ship was made by GE. Plus, GE’s description of its encapsulated chrysotile wiring differed from Arbogast’s description of the wire he worked with. GE’s written discovery stated that “[d]ue to the encapsulation of the chrysotile fibers, . . . the use, installation and removal of such chrysotile-containing wire and cable products would not be expected to cause the release of asbestos fibers in any quantity significant to human health.” Plaintiffs cited to no evidence in the record to the contrary, nor is it likely they could do so in light of Dr. Vance’s concessions in his deposition testimony to the effect that he knew of no studies relating to electrical wire and asbestos exposure. Without any evidence to permit a reasonable inference that Arbogast was frequently and regularly in close proximity to any asbestos-containing GE product on board the USS Sagamore, that portion of Plaintiffs’ claim fails. As to Arbogast’s employment at the Sparrows Point Shipyard, Plaintiffs have not directed the Court’s attention to any evidence from which a jury could draw a reasonable inference that Arbogast encountered at the shipyard any GE products actually containing asbestos. They relied upon Arbogast’s ipse dixit to prove GE products contained asbestos, which was not sufficient evidence. Plaintiffs fail to show that any particular GE products, containing asbestos, were used in regular proximity to Arbogast such that he would have met the Maryland standard for determining actionable exposure to asbestos. Consequently, this portion of Plaintiff’s claim against GE fails. Plaintiffs’ evidence as to Arbogast’s alleged asbestos exposure caused by GE products at the Curtis Bay Coal and Piers jobsite was similarly deficient. Plaintiffs pointed to evidence that Arbogast was sometimes around dust-but they cannot establish that the dust was caused by asbestos in GE products.
In sum, the Court concluded that Dr. Vance’s opinions as to Arbogast’s exposure to asbestos being caused by GE products were properly excluded. In addition, the evidence before the Court failed to create a genuine dispute of material fact as to Plaintiffs’ exposure to a GE product, and so the Court granted GE’s Motion for Summary Judgment.
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